Citation Nr: 1037522
Decision Date: 10/04/10 Archive Date: 10/12/10
DOCKET NO. 04-19 235 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in San Juan, the
Commonwealth of Puerto Rico
THE ISSUES
1. Entitlement to a compensable evaluation for hemorrhoids.
2. Entitlement to service connection for hypertension, to
include as due to service-connected posttraumatic stress disorder
(PTSD) and type II diabetes mellitus.
3. Entitlement to service connection for erectile dysfunction,
to include as due to service-connected PTSD and type II diabetes
mellitus.
4. Entitlement to service connection for an upper back disorder,
to include as secondary to PTSD.
5. Whether new and material evidence has been received to reopen
a claim for service connection for a prostate disorder, to
include as secondary to herbicide exposure in Vietnam.
6. Whether new and material evidence has been received to reopen
a claim for service connection for bilateral hearing loss.
7. Whether new and material evidence has been received to
reopen a claim for service connection for a lumbar spine disorder
as secondary to service-connected disability.
8. Entitlement to service connection for a skin disorder, to
include as secondary to herbicide exposure in Vietnam.
9. Entitlement to service connection for osteoarthritis of the
joints, to include as secondary to PTSD.
10. Entitlement to service connection for peripheral neuropathy
of the upper and lower extremities, to include as secondary to
type II diabetes mellitus and herbicide exposure in Vietnam.
11. Entitlement to an initial evaluation in excess of 50 percent
for PTSD.
12. Entitlement to an initial compensable evaluation for
temporomandibular joint (TMJ) dysfunction.
13. Entitlement to a total disability evaluation based upon
individual unemployability due to service-connected disability
(TDIU).
14. Entitlement to an effective date prior to January 25, 1999
for the grant of service connection for PTSD.
REPRESENTATION
Appellant represented by: Vietnam Veterans of America
ATTORNEY FOR THE BOARD
A. C. Mackenzie, Counsel
INTRODUCTION
The Veteran served on active duty from February 1968 to June
1969.
This matter comes before the Board of Veterans' Appeals (Board)
on appeal from multiple rating decisions issued by the Department
of Veterans Affairs (VA) Regional Office (RO) in San Juan, Puerto
Rico.
Most of these claims were previously remanded in a May 2007 Board
decision. In that same decision, the Board denied claims for
higher evaluations for PTSD and TMJ dysfunction. The Board's
denials of these claims, however, was vacated pursuant to an
August 2008 joint motion of the Veteran and his representative
and a September 2008 order of the United States Court of Appeals
for Veterans Claims (Court). The joint motion clearly indicates
that the remaining claims adjudicated in the May 2007 Board
decision were not being further appealed on appeal and were being
abandoned.
The Veteran submitted additional evidence to the Board in August
2010, accompanied by a waiver of RO review. 38 C.F.R.
§ 20.1304(c) (2009).
In an August 2009 statement, the Veteran indicated an intent to
reopen a previously denied claim for service connection for
chronic obstructive pulmonary disease (COPD). Moreover, the
August 2010 brief of the Veteran's representative raises the
issue of service connection for tinnitus, which is not presently
on appeal. Accordingly, the Board lacks jurisdiction over
the issues of entitlement to service connection for
tinnitus and whether new and material evidence has been
received to reopen a claim for service connection for
COPD, and these claims are referred to the RO for
appropriate action.
The reopened claims for service connection for a prostate
disorder and bilateral hearing loss, along with the issues of
whether new and material evidence has been received to reopen a
claim for service connection for a lumbar spine disorder;
entitlement to service connection for a skin disorder, to include
as secondary to herbicide exposure in Vietnam; entitlement to
service connection for osteoarthritis of the joints, to include
as secondary to PTSD; entitlement to service connection for
peripheral neuropathy of the upper and lower extremities, to
include as secondary to type II diabetes mellitus and herbicide
exposure in Vietnam; entitlement to an initial evaluation in
excess of 50 percent for PTSD; entitlement to an initial
compensable evaluation for TMJ dysfunction; entitlement to TDIU;
and entitlement to an effective date prior to January 25, 1999
for the grant of service connection for PTSD are addressed in the
REMAND portion of the decision below and are REMANDED to the RO
via the Appeals Management Center (AMC), in Washington, DC.
FINDINGS OF FACT
1. The Veteran's hemorrhoids are productive of frequent
recurrences, as he has described observing frequent bleeding.
2. There is competent medical evidence of record establishing
that the Veteran's hypertension has been worsened by PTSD, and
hypertension was manifest within one year following service.
3. The competent medical evidence of record does not establish
that erectile dysfunction is etiologically related to service or
to the service-connected
PTSD and type II diabetes mellitus.
4. The competent medical evidence of record does not establish
that an upper back disorder is etiologically related to service
or to the service-connected
PTSD.
5. The Veteran's claim for service connection for a prostate
disorder was previously denied in an August 1997 rating decision,
for which the Veteran initiated but later withdrew an appeal;
evidence received since that decision now establishes a current
diagnosis of a prostate disorder.
6. The Veteran's claim for service connection for bilateral
hearing loss was previously denied in an unappealed December 1996
rating decision, which was found to not be timely appealed in a
December 2002 Board decision; evidence received since that
decision now establishes a current diagnosis of bilateral hearing
loss.
CONCLUSIONS OF LAW
1. The criteria for a 10 percent evaluation for hemorrhoids have
been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 &
Supp. 2010); 38 C.F.R. §§ 3.159, 4.1, 4.7, 4.114, Diagnostic Code
7336 (2009).
2. Hypertension was incurred as due to service and was also
aggravated by the service-connected PTSD. 38 U.S.C.A. §§ 1110,
1112, 1113, 5103, 5103A, 5107 (West 2002 & Supp. 2010); 38 C.F.R.
§§ 3.159, 3.303, 3.307, 3.309, 3.310 (2009).
3. Erectile dysfunction was not incurred in or aggravated by
service, or as secondary to the service-connected PTSD and type
II diabetes mellitus. 38 U.S.C.A. §§ 1110, 1112, 5103, 5103A,
5107 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.159, 3.303, 3.310
(2009).
4. An upper back disorder was not incurred in or aggravated by
service, or as secondary to the service-connected PTSD.
38 U.S.C.A. §§ 1110, 1112, 1113, 5103, 5103A, 5107 (West 2002 &
Supp. 2010); 38 C.F.R. §§ 3.159, 3.303, 3.307, 3.309, 3.310
(2009).
5. New and material evidence has been received to reopen a claim
for service connection for a prostate disorder. 38 U.S.C.A.
§§ 5103, 5108, 5103A, 5107, 7104, 7105 (West 2002 & Supp. 2010);
38 C.F.R. §§ 3.156, 3.159 (2009).
6. New and material evidence has been received to reopen a claim
for service connection for bilateral hearing loss. 38 U.S.C.A.
§§ 5103, 5108, 5103A, 5107, 7104, 7105 (West 2002 & Supp. 2010);
38 C.F.R. §§ 3.156, 3.159 (2009).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
I. Entitlement to a compensable evaluation for hemorrhoids
Disability ratings are determined by applying the criteria set
forth in VA's Schedule for Rating Disabilities. Ratings are
based on the average impairment of earning capacity. Individual
disabilities are assigned separate diagnostic codes. See 38
U.S.C.A. § 1155; 38 C.F.R. § 4.1.
Where entitlement to compensation has already been established,
and an increase in the disability rating is at issue, the
present level of disability is of primary concern. Although a
rating specialist is directed to review the recorded history of a
disability in order to make a more accurate evaluation, the
regulations do not give past medical reports precedence over
current findings. See Francisco v. Brown, 7 Vet. App. 55 (1994);
38 C.F.R. § 4.2. Staged ratings are, however, appropriate for an
increased rating claim when the factual findings show distinct
time periods where the service-connected disability exhibits
symptoms that would warrant different ratings. The relevant
focus for adjudicating an increased rating claim is on the
evidence concerning the state of the disability from the time
period one year before the claim was filed until VA makes a final
decision on the claim. See generally Hart v. Mansfield, 21 Vet.
App. 505 (2007).
Where there is a question as to which of two evaluations shall be
applied, the higher evaluation will be assigned if the disability
picture more nearly approximates the criteria required for that
rating. Otherwise, the lower rating will be assigned. See 38
C.F.R. § 4.7.
Under 38 C.F.R. § 4.114, Diagnostic Code 7336, a zero percent
evaluation is warranted for mild or moderate hemorrhoids. A 10
percent evaluation contemplates hemorrhoids that are large or
thrombotic, irreducible, with excessive redundant tissue,
evidencing frequent recurrences. A maximum 20 percent evaluation
is assigned for hemorrhoids with persistent bleeding and with
secondary anemia, or with fissures.
At his February 2003 rectum and anus examination, the Veteran
reported rectal bleeding episodes monthly, consisting of toilet
paper staining with bright red blood and around five to seven
days of pain and pruritis in the rectal area. The examination
revealed several external hemorrhoids at 6 and 9 o'clock, and the
examiner diagnosed external hemorrhoids. A November 2005 VA
genitourinary examination contains a diagnosis of an anal
hemorrhoid "not related to patient's condition." The Veteran's
most recent VA rectum and anus examination was conducted in
October 2008, by an examiner who reviewed the claims file. The
examiner noted that the Veteran's hemorrhoids had gotten
progressively worse with time. The Veteran reported
"[f]requent" rectal bleeding, anal itching, and burning. The
rate of recurrence without thrombosis was noted to be four or
more per year. The examiner diagnosed hemorrhoids; noted that
the Veteran was very uncomfortable all the time; and listed mild
effects on chores, exercise, and traveling.
Based upon the above evidence, the Board finds that a 10 percent
evaluation, but not more, is warranted in this case. A 10
percent evaluation is assigned for frequent recurrences, and the
Veteran has described frequent bleeding, a symptom that he would
be capable of observing. See Layno v. Brown, 6 Vet. App. 465
(1994). That having been stated, he has not described
persistent bleeding, and there is no evidence of secondary
anemia or fissures. In making this determination, the Board
finds that there is no basis for a "staged" rating pursuant to
Hart. Rather, the symptomatology shown upon examination during
the pendency of the appeal has been essentially consistent and
fully contemplated by the assigned disability rating.
Finally, the Veteran has submitted no evidence showing that this
disorder has markedly interfered with his employment status
beyond that interference contemplated by the assigned evaluation,
and there is also no indication that this disorder has
necessitated frequent, or indeed any, periods of hospitalization
during the pendency of this appeal. As such, the Board is not
required to remand this matter to the RO for the procedural
actions outlined in 38 C.F.R. § 3.321(b)(1), which concern the
assignment of extra-schedular evaluations in "exceptional"
cases. See Thun v. Peake, 22 Vet. App. 111 (2008).
Overall, the evidence supports an increased evaluation of 10
percent for the entire pendency of this appeal. To that extent,
the appeal is granted. 38 C.F.R. §§ 4.3, 4.7.
II. Claims for service connection
A. Applicable laws and regulations
Service connection may be granted for a disability resulting from
disease or injury incurred in or aggravated by service. 38
U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). Service connection
requires competent evidence showing: (1) the existence of a
present disability; (2) in-service incurrence or aggravation of a
disease or injury; and (3) a causal relationship between the
present disability and the disease or injury incurred or
aggravated during service. Shedden v. Principi, 381 F.3d 1163,
1167 (Fed. Cir. 2004); see also Caluza v. Brown, 7 Vet. App. 498
(1995). For the showing of chronic disease in service, there is
required a combination of manifestations sufficient to identify
the disease entity and sufficient observation to establish
chronicity at the time. If chronicity in service is not
established, a showing of continuity of symptoms after discharge
is required to support the claim. 38 C.F.R. § 3.303(b). Service
connection may also be granted for any disease diagnosed after
discharge when all of the evidence establishes that the disease
was incurred in service. 38 C.F.R. § 3.303(d).
Also, certain chronic diseases, including hypertension and
arthritis, may be presumed to have been incurred during service
if manifested to a compensable degree within one year of
separation from active military service. 38 U.S.C.A. §§ 1112,
1113, 1137; 38 C.F.R. §§ 3.307, 3.309.
Additionally, disability which is proximately due to, or results
from, another disease or injury for which service connection has
been granted shall be considered a part of the original
condition. 38 C.F.R. § 3.310(a). Any increase in severity of a
nonservice-connected disease or injury that is proximately due to
or the result of a service-connected disease or injury, and not
due to the natural progress of the nonservice-connected disease,
will be service connected. However, VA will not concede that a
nonservice-connected disease or injury was aggravated by a
service-connected disease or injury unless the baseline level of
severity of the nonservice-connected disease or injury is
established by medical evidence created before the onset of
aggravation or by the earliest medical evidence created at any
time between the onset of aggravation and the receipt of medical
evidence establishing the current level of severity of the
nonservice-connected disease or injury. 38 C.F.R. § 3.310(b);
see also Allen v. Brown, 7 Vet. App. 439, 448 (1995).
B. Hypertension
The Veteran's service treatment records do not indicate
hypertension. He underwent a VA examination in September 1969,
the report of which includes five different blood pressure
readings with diastolic pressure of 90 or above. The examiner
diagnosed essential hypertension due to an anxiety reaction.
In a July 2001 statement, Humberto Simonetti, M.D., a
cardiologist, noted that the Veteran's high blood pressure had
been exacerbated by his emotional and anxious behavior. Dr.
Simonetti further noted that the Veteran's previous military
experience and stress could be one factor that exacerbated his
blood pressure.
A November 2003 VA hypertension examination report contains
internally contradictory opinions from the examiner. Initially,
the examiner noted that permanent hypertension was more likely
than not proximately due to or the direct result of service-
connected PTSD yet further stated that temporary aggravation of
high blood pressure can be due to emotional tension, but "it
would not be permanent returning to the usual blood pressure
levels as tension subsides." In another section of the
examination report, the examiner stated that it was not as likely
as not that arterial hypertension was proximately due to or the
direct result of service-connected PTSD, but then the examiner
confusingly indicated that it was at least as likely as not that
the service-connected PTSD aggravated or increased the disability
manifestations or symptoms of the claimed hypertension. The
examiner then went on to note that the level of increased
disability manifestations representing aggravation of the
baseline manifestations of hypertension were due to service-
connected PTSD. The examiner further noted that tension and
anxiety produced by PTSD will increase temporarily
vasoconstrictive mechanisms such as catecholamines or adrenaline,
but not on a permanent basis. Idiopathic or essential
hypertension exists on a permanent basis of an unknown mechanism
that can be aggravated by catecholamines.
The Veteran underwent a VA diabetes mellitus examination in
February 2007, with an examiner who reviewed the claims file.
The examiner noted that hypertension was not a complication of
diabetes but instead preexisted diabetes and was not worsened or
increased by the diabetes. No rationale was provided for this
opinion.
In April 2009, the Veteran underwent a VA hypertension
examination, with an examiner who reviewed the claims file. The
examiner noted that hypertension was not caused by or a result of
PTSD. The examiner stated that mental disease and stress can
temporarily elevate blood pressure during an acute phase of the
disease, but there was no medical literature substantiating that
PTSD permanently elevates the blood pressure.
The claims file also includes an April 2009 statement from Dr.
Simonetti. In this statement, Dr. Simonetti noted that he had
treated the Veteran for high blood pressure since May 1991,
stated that he had reviewed the Veteran's "medical records from
Veterans Administration," and indicated that the Veteran was
treated for chest pain in March 1969 during service. Dr.
Simonetti also noted the Veteran's elevated blood pressure upon
examination in September 1969. At that time, the blood pressure
elevation was found to be related to a nervous condition. Dr.
Simonetti noted that the Veteran was very nervous and anxious and
stated that his PTSD aggravated his high blood pressure.
In a May 2009 statement, Joseph Robert Anthony, M.D., stated that
he had treated the Veteran since the early 1980s for
hypertension. Dr. Anthony noted that essential hypertension was
diagnosed in the September 1969 VA examination report and that
"it was found within the presumptive period and he should have
service connection in regard to the hypertension." Dr. Anthony
further linked hypertension to PTSD, noting that it was related
to the PTSD that he endured during the Vietnam War.
In a June 2009 statement, Fabio H. Lugo, M.D., noted that
"[a]ccording to medical records" the Veteran had been suffering
from hypertension since September 1969, after he received
shrapnel wounds in Vietnam. Dr. Lugo thus concurred with Dr.
Anthony that the Veteran's hypertension dated back to service and
was related to PTSD.
Overall, the record indicates a diagnosis of hypertension within
one year after service. The Board also finds that the statements
from the Veteran's three private doctors are no less detailed
than the contemporaneous VA examination report opinions in
addressing the link between hypertension and both service and
PTSD. The Board is further cognizant of the fact that Dr.
Simonetti and Dr. Anthony had treated the Veteran for extensive
periods of time. See generally Nieves-Rodriguez v. Peake, 22
Vet. App. 295 (2008) (concerning the probative value of private
doctors' opinions when those doctors had treated the Veteran for
a lengthy period). The Board thus finds that the evidence as to
the casual relationship between claimed hypertension and both
service and service-connected PTSD is not entirely supportive of
the claim but is balanced in favor of his contentions.
Accordingly, this claim is granted in view of 38 U.S.C.A.
§§ 3.303, 3.307, 3.309, and 3.310.
C. Erectile dysfunction and upper back disorder
The Veteran was not treated for erectile dysfunction in service.
In November 2005, he underwent a VA genitourinary examination
addressing his erectile dysfunction. The examiner reviewed the
claims file and found that erectile dysfunction was present but
was not related to PTSD, noting that it had been proven that PTSD
was not related to erectile dysfunction. In a February 2007 VA
genitourinary examination report, the examiner, who had examined
the Veteran earlier in November 2005, noted that he had erectile
dysfunction prior to the diagnosis of diabetes mellitus and also
indicated that "it is not related to PTSD as previously claimed
I can not explain or resolve this issue without resort to mere
speculation."
Also, the Veteran was not treated for any upper back or neck
problems in service. An April 1989 private psychiatric
evaluation indicates that the Veteran injured his back while
restraining and rescuing a man who attempted to commit suicide in
September 1987. The psychiatrist noted that this attempted
suicide appeared to trigger a reemergence of PTSD, as expressed
through a chronic pain syndrome, but did not specifically relate
this to a neck or upper back condition. A February 1999 VA
treatment record indicates that the Veteran was seen for trauma
to the head, neck, and face "today." He underwent a VA spine
examination in November 2003, during which he asserted that his
back pain was secondary to PTSD because he had a flashback while
trying to save the life of a 375-pound man. The examiner, who
reviewed the claims file, diagnosed cervical, thoracic, and
lumbar myositis and determined that it was not at as likely as
not that these were secondary to PTSD. The rationale for this
opinion was that the PTSD was not the stressor that caused
myofascial pain; rather, it was the physical stress on the
Veteran's back caused by holding a large man. The examiner noted
that he had discussed this case with a VA psychiatrist. Also, a
June 2006 VA fibromyalgia examination report contains diagnoses
of cervical degenerative joint disease and cervical strain, with
the examiner, who reviewed the claims file, noting that
"[a]ctual symptoms" were not related to PTSD or "other than
that to aging."
At present, there is no medical evidence of record linking
claimed erectile dysfunction to service or to the service-
connected PTSD and type II diabetes mellitus. The Veteran has
submitted treatise evidence, namely internet printouts from July
2010, indicating that diabetes mellitus may cause erectile
dysfunction, but these records do not in any way speak to his own
case. The Board is further cognizant of the February 2007
genitourinary examiner's reference to "resort to mere
speculation," but, in light of the total dearth of medical
evidence otherwise supporting the Veteran's claim and the
otherwise unfavorable opinion indicated in the report, the Board
does not find that the examination report needs to be returned to
the examiner for further elaboration. There is likewise no
medical evidence linking an upper back disorder to service or to
the service-connected PTSD. The Board also notes that the
Veteran has not specifically argued an in-service etiology.
As to the competency of the Veteran and the probative value of
his statements, the Board notes that he may well be able to
observe changes in his sexual functioning and upper back
symptoms. Notably, in certain instances, lay evidence has been
found to be competent with regard to a disease with "unique and
readily identifiable features" that is "capable of lay
observation." See Barr v. Nicholson, 21 Vet. App. 303, 308-09
(2007) (concerning varicose veins); see also Jandreau v.
Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007) (a dislocated
shoulder); Charles v. Principi, 16 Vet. App. 370, 374 (2002)
(tinnitus); Falzone v. Brown, 8 Vet. App. 398, 405 (1995)
(flatfoot). That notwithstanding, a Veteran has been found to
not be competent to provide evidence in more complex medical
situations. See Woehlaert v. Nicholson, 21 Vet. App. 456, 462
(2007) (concerning rheumatic fever); see also Routen v. Brown, 10
Vet. App. 183, 186 (1997) (as a general matter, a layperson is
not capable of opining on matters requiring medical knowledge).
The question of whether one particular disease can cause or
permanently worsen another disease is a complex medical question
that cannot addressed based on mere observation of symptoms but
instead requires credentials, expertise, or training that the
Veteran has not been shown to possess. Accordingly, as to that
question, the Veteran's own contentions do not constitute
competent evidence and have no probative value.
Overall, the preponderance of the evidence is against the
Veteran's claims for service connection for erectile dysfunction,
to include as due to service-connected PTSD and type II diabetes
mellitus; and for an upper back disorder as due to PTSD. These
claims must accordingly be denied. In reaching this
determination, the Board acknowledges that VA is statutorily
required to resolve the benefit of the doubt in favor of the
Veteran when there is an approximate balance of positive and
negative evidence regarding the merits of an outstanding issue.
That doctrine, however, is not applicable in this case because
the preponderance of the evidence is against the Veteran's
claims. See Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990); 38
U.S.C.A. § 5107(b).
III. New and material evidence
Generally, a final rating decision or Board decision may not be
reopened and allowed, and a claim based on the same factual basis
may not be considered. 38 U.S.C.A. §§ 7104, 7105. Under 38
U.S.C.A. § 5108, however, "[i]f new and material evidence is
presented or secured with respect to a claim which has been
disallowed, the Secretary shall reopen the claim and review the
former disposition of the claim."
Under 38 C.F.R. § 3.156(a), the revised provisions of which are
effective in this case because the Veteran's claim was received
subsequent to August 29, 2001, "new and material evidence"
means evidence not previously submitted to agency decisionmakers
which, by itself or in connection with evidence previously
included in the record, "relates to an unestablished fact
necessary to substantiate the claim." New and material evidence
can be "neither cumulative nor redundant" of the evidence of
record at the time of the last prior final denial of the claim
and must also "raise a reasonable possibility of substantiating
the claim."
For the purpose of establishing whether new and material evidence
has been submitted, the credibility of the evidence, although not
its weight, is to be presumed. Justus v. Principi, 3 Vet. App.
510, 513 (1992).
In this case, the Veteran's initial claim for service connection
for a prostate disorder was denied in an August 1997 rating
decision on the basis that the disability, claimed as due to
exposure to herbicides, was not shown in the VA outpatient
treatment records. The Veteran's Notice of Disagreement with
this rating decision was received in September 1997, and a
Statement of the Case was issued in May 1998. The Veteran's
Substantive Appeal was received in June 1998, but he withdrew the
prostate disorder claim from appellate status in a July 1998 lay
statement. The August 1997 rating decision is thus final.
Similarly, the claim for service connection for bilateral hearing
loss was denied in a December 1996 rating decision on the basis
that this disability was not shown in service treatment or post-
service records. The Veteran's Notice of Disagreement with this
rating decision was received in February 1997, and a Statement of
the Case was issued in October 1997. His Substantive Appeal was
received in June 1998. In September 1998, the Veteran was
notified that his substantive appeal was untimely. The Veteran
appealed this timeliness determination to the Board, but, in
December 2002, the Board found the appeal to be untimely.
In both instances, the claims file at the time of the noted final
decisions did not include current diagnoses corresponding to the
claimed disorders. At the present time, however, there is
evidence establishing both disorders. This includes a February
2007 VA genitourinary examination report indicating benign
prostatic hypertrophy and a June 1998 audiological report showing
pure tone thresholds above 40 decibels bilaterally. The Board
finds both pieces of evidence to be accordingly be "material."
As to the June 1998 audiological report, the Board has considered
whether this was of record at the time of the January 2002 Board
decision. In this regard, the Board notes that quite a few
documents in the claims file have been filed out of chronological
order of receipt. The claims file reflects that the RO received
the June 1998 VA audiological report in November 2002, prior to
the December 2002 Board decision. That notwithstanding, the
claims file had been transferred to the Board in April 2001, and
there is no date stamp or other indication of record that the
June 1998 VA audiological report and accompanying submissions
(included in a manila folder associated with the claims file)
were forwarded to the Board so as to be considered in the
December 2002 decision. Accordingly, the Board finds that this
material evidence should also be considered "new" for purposes
of the issue at hand.
In view of this new and material evidence, the claims for service
connection for a prostate disorder and bilateral hearing loss are
reopened. For reasons described in further detail below,
however, these claims are subject to additional development on
remand.
IV. Duties to notify and assist
As noted above, the claim for service connection for hypertension
has been granted in full, whereas the claims for service
connection for a prostate disorder and bilateral hearing loss
have been reopened and are now subject to additional development
on remand. This section will accordingly address only the claims
for an increased evaluation for hemorrhoids and service
connection for erectile dysfunction and an upper back disorder.
VA's duties to notify and assist claimants in substantiating a
claim for VA benefits are found at 38 U.S.C.A. §§ 5100, 5102,
5103, 5103A, 5107, 5126 and 38 C.F.R. §§ 3.102, 3.156(a), 3.159,
3.326(a). See also 73 Fed. Reg. 23,353-23,356 (April 30, 2008)
(concerning revisions to 38 C.F.R. § 3.159). Upon receipt of a
complete or substantially complete application for benefits, VA
is required to notify the claimant and his or her representative,
if any, of any information, and any medical evidence or lay
evidence that is necessary to substantiate the claim. 38
U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); see also Quartuccio v.
Principi, 16 Vet. App. 183 (2002). In accordance with 38 C.F.R.
§ 3.159(b)(1), proper notice must inform the claimant of any
information and evidence not of record (1) that is necessary to
substantiate the claim; (2) that VA will seek to provide; and (3)
that the claimant is expected to provide.
In this case, notice fulfilling the requirements of 38 C.F.R. §
3.159(b) was furnished to the Veteran in September 2002, October
2005, January 2007, and August 2008. In the January 2007 letter,
the Veteran was notified of VA's practices in assigning
disability evaluations and effective dates for those evaluations.
See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The
claims have since been adjudicated in a September 2009 Statement
of the Case. This course of corrective action ensures that there
will be no prejudice to the Veteran from any errors of
notification. See Mayfield v. Nicholson, 499 F.3d 1317 (Fed.
Cir. 2007).
VA has also fulfilled its duty to assist in obtaining the
identified and available evidence needed to substantiate the
claims adjudicated in this decision. The RO has either obtained,
or made sufficient efforts to obtain, records corresponding to
all treatment described by the Veteran. Additionally, the
Veteran was afforded VA examinations that were fully adequate for
the purposes of ascertaining the symptoms and severity of the
hemorrhoids and the nature and etiology of the erectile
dysfunction and upper back disorder. See Barr v. Nicholson, 21
Vet. App. 303 (2007).
Finally, the hemorrhoids and upper back disorder claims were
addressed in a May 2007 Board remand, but only insofar as
issuance of a Statement of the Case was required pursuant to
Manlincon v. West, 12 Vet. App. 238, 240-41 (1999). This was
accomplished in December 2008, and the Veteran has perfected his
appeal as to those claims. See Stegall v. West, 11 Vet. App.
268, 270-71 (1998).
Overall, there is no evidence of any VA error in notifying or
assisting the Veteran that reasonably affects the fairness of
this adjudication.
ORDER
Entitlement to a 10 percent evaluation for hemorrhoids is
granted, subject to the laws and regulations governing the
payment of monetary benefits.
Entitlement to service connection for hypertension, to include as
due to service-connected PTSD, is granted.
Entitlement to service connection for erectile dysfunction, to
include as due to service-connected PTSD and type II diabetes
mellitus, is denied.
Entitlement to service connection for an upper back disorder, to
include as secondary to PTSD, is denied.
New and material evidence has been received to reopen a claim for
service connection for a prostate disorder; to that extent only,
the appeal is granted.
New and material evidence has been received to reopen a claim for
service connection for bilateral hearing loss; to that extent
only, the appeal is granted.
REMAND
As noted above, the Veteran's claims for service connection for a
prostate disorder and bilateral hearing loss have been reopened
in view of the recent diagnoses of these disorders. While the
Veteran has related these disabilities back to service, he has
not been afforded VA examinations addressing the nature and
etiology of these disabilities to date. See McLendon v.
Nicholson, 20 Vet. App. 79 (2006). The Board would also point
out that, in January 2009, the Veteran reported treatment for
prostate cancer at the Ponce, Puerto Rico VA Medical Center
(VAMC); although he has since submitted several outpatient
records from this facility, the most recent records obtained by
the RO date from August 2008. Therefore, a request for updated
records is warranted. 38 C.F.R. § 3.159(c)(2).
Similarly, in a February 1982 VA treatment record, the Veteran
was noted to have been "pruritic all over" including the face,
arms, and back since returning from Vietnam in 1969. At present,
however, the only non-scar skin disorder for which service
connection is in effect is tinea pedis, and a July 1968 service
treatment record indicates a heat rash of the back. Accordingly,
the Veteran should be afforded a VA examination to ascertain
whether he currently has a skin disorder, other than tinea pedis,
that is of in-service etiology. Id.
As to the PTSD and TMJ dysfunction claims, both remanded pursuant
to the August 2008 joint motion, the Board notes that the Veteran
has not undergone VA examinations since, respectively, 2003 and
2004. Given the Veteran's contentions on appeal and the Court's
order for a remand, reexaminations are thus warranted, and the
TMJ dysfunction should be specifically addressed to ascertain
whether there exists a basis for an increased evaluation in view
of 38 C.F.R. §§ 4.40 and 4.45 and DeLuca v. Brown, 8 Vet. App.
202, 204-07 (1995).
Several other claims warrant additional development on the basis
of insufficient 38 C.F.R. § 3.159 notification. Notably, there
are significant problems with the September 2002 notice letter as
to the osteoarthritis and lumbar spine claims. The de novo
osteoarthritis claim was only addressed on a direct service
connection basis in this letter, with the question of a causal
relationship with PTSD in view of 38 C.F.R. § 3.310 not
discussed. The Veteran specified in his January 2009 Notice of
Disagreement that this "is a secondary issue to Vet's PTSD."
See Robinson v. Mansfield, 21 Vet. App. 545, 551-52 (2008). As
to the issue of whether new and material evidence has been
received to reopen a claim for service connection for a lumbar
spine disorder, the Board notes that this claim was addressed
only on a de novo basis, and the letter (in reference to other
issues) included the provisions of the deleted 2000 version of
38 C.F.R. § 3.156(a), rather than the current version. See Kent
v. Nicholson, 20 Vet. App. 1 (2006). It is the current version
that is applicable, as the Veteran's claim was received in August
2002. The Board also notes that the Veteran has received no
38 C.F.R. § 3.159 notification whatsoever on his peripheral
neuropathy claim. All of these deficiencies will have to be
corrected on remand.
In a June 2007 rating decision, the RO effectuated an effective
date of January 25, 1999 for the grant of service connection for
PTSD, following the Board's May 2007 decision. The Veteran
submitted a Notice of Disagreement with this determination in
July 2007. To date, however, he has not been furnished with a
Statement of the Case. As such, it is incumbent upon the RO to
issue a Statement of the Case addressing this particular issue.
See Manlincon v. West, 12 Vet. App. at 240-41; 38 C.F.R. § 19.26.
The resolution of the above claims could affect the Veteran's
TDIU claim, and action on that claim is accordingly deferred.
See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (two issues
are "inextricably intertwined" when they are so closely tied
together that a final Board decision on one issue cannot be
rendered until the other issue has been considered).
Accordingly, the case is REMANDED for the following action:
1. The Veteran must be furnished a notice
letter addressing the reopened claims for
service connection for a prostate disorder and
bilateral hearing loss, along with the issues of
whether new and material evidence has been
received to reopen a claim for service
connection for a lumbar spine disorder;
entitlement to service connection for a skin
disorder, to include as secondary to herbicide
exposure in Vietnam; entitlement to service
connection for osteoarthritis of the joints, to
include as secondary to PTSD; entitlement to
service connection for peripheral neuropathy of
the upper and lower extremities, to include as
secondary to type II diabetes mellitus and
herbicide exposure in Vietnam; entitlement to an
initial evaluation in excess of 50 percent for
PTSD; entitlement to an initial compensable
evaluation for TMJ dysfunction; and entitlement
to TDIU.
Specifically, this letter must contain a
description of the type of evidence needed to
substantiate a claim under 38 C.F.R. § 3.310
(secondary service connection). The Veteran
must also be informed of the prior denial of
service connection for a lumbar spine disorder
and the type of evidence needed to reopen that
claim, in terms of 38 C.F.R. § 3.156(a).
2. The Ponce VAMC must be contacted, and
treatment records dated since August 2008 should
be requested. All records obtained pursuant to
this request must be added to the claims file.
If no records are available, this should be
noted in the claims file.
3. Then, the Veteran should be afforded a VA
audiological examination, with an appropriate
examiner, to determine the nature and etiology
of the claimed bilateral hearing loss. The
examiner must review the claims file in
conjunction with the examination.
All tests and studies deemed necessary by the
examiner should be performed, to include pure
tone threshold and Maryland CNC tests. Based on
a review of the claims file and the clinical
findings of the examination, the examiner is
requested to offer an opinion as to whether it
is at least as likely as not (e.g., a 50
percent or greater probability) that bilateral
hearing loss is etiologically related to the
Veteran's period of active service. A complete
rationale should be given for all opinions and
conclusions expressed in a typewritten report.
4. The Veteran should be afforded a VA general
medical examination addressing the claimed skin
and prostate disorders. The examiner must
review the claims file in conjunction with the
examination.
All tests and studies deemed necessary by the
examiner should be performed. Based on a review
of the claims file and the clinical findings of
the examination, the examiner is requested to
provide diagnoses (other than tinea pedis, for
which service connection is in effect)
corresponding to the claimed disorders. The
examiner should specifically indicate whether
prostate cancer is present. The examiner is
also requested to offer an opinion as to whether
it is at least as likely as not (e.g., a 50
percent or greater probability) that the
diagnosed disorders are etiologically related to
the Veteran's period of active service. A
complete rationale should be given for all
opinions and conclusions expressed in a
typewritten report.
5. The Veteran should be afforded a VA
psychiatric examination, with an appropriate
examiner, to determine the symptoms and severity
of the service-connected PTSD. The examiner
must review the claims file in conjunction with
the examination.
All tests and studies deemed necessary by the
examiner should be performed. In discussing the
relevant clinical findings, the examiner should
specifically note whether the Veteran has
suicidal ideation and the extent to which his
disability interferes with social and
occupational functioning. If the Veteran is
deemed unable to secure or follow a
substantially gainful occupation due to
PTSD, the examiner should so state and
should specify the approximate date when
such unemployability arose, taking into
account the statements from the Veteran's
private doctors on this subject. A complete
rationale should be given for all opinions and
conclusions expressed in a typewritten report.
6. The Veteran should be afforded a VA dental
examination, with an appropriate examiner, to
determine the symptoms and severity of the
service-connected TMJ dysfunction. The examiner
must review the claims file in conjunction with
the examination.
All tests and studies deemed necessary by the
examiner should be performed. In discussing the
relevant clinical findings, the examiner should
specifically note all limitations, including the
extent to which this disability is productive of
painful motion, functional loss due to pain,
weakness, excess fatigability, and additional
disability during flare-ups. A complete
rationale should be given for all opinions and
conclusions expressed in a typewritten report.
7. Then, after determining that all requested
development has been fully accomplished, the
RO/AMC must readjudicate the reopened claims for
service connection for a prostate disorder and
bilateral hearing loss, along with the issues of
whether new and material evidence has been
received to reopen a claim for service
connection for a lumbar spine disorder;
entitlement to service connection for a skin
disorder, to include as secondary to herbicide
exposure in Vietnam; entitlement to service
connection for osteoarthritis of the joints, to
include as secondary to PTSD; entitlement to
service connection for peripheral neuropathy of
the upper and lower extremities, to include as
secondary to type II diabetes mellitus and
herbicide exposure in Vietnam; entitlement to an
initial evaluation in excess of 50 percent for
PTSD; entitlement to an initial compensable
evaluation for TMJ dysfunction; and entitlement
to TDIU.
If the determination of any of these claims
remains less than fully favorable to the
Veteran, he and his representative should be
furnished with a Supplemental Statement of the
Case and given an opportunity to respond.
8. The Veteran and his representative must also
be furnished with a Statement of the Case
addressing the issue of entitlement to an
effective date prior to January 25, 1999 for the
grant of service connection for PTSD. This
issuance must include all regulations pertinent
to the case at hand, as well as an explanation
of the Veteran's rights and responsibilities in
perfecting an appeal on this matter.
The appellant has the right to submit additional evidence and
argument on the matter or matters the Board has remanded.
Kutscherousky v. West, 12 Vet. App. 369 (1999).
This claim must be afforded expeditious treatment. The law
requires that all claims that are remanded by the Board of
Veterans' Appeals or by the United States Court of Appeals for
Veterans Claims for additional development or other appropriate
action must be handled in an expeditious manner. See 38 U.S.C.A.
§§ 5109B, 7112 (West Supp. 2009).
______________________________________________
MARY GALLAGHER
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs